NUMSA obo Jada and Another v Defy Refrigeration, A Division of Defy Appliances (Pty) Ltd and Others (D834/2009) [2015] ZALCD 35 (10 June 2015)

NUMSA obo Jada and Another v Defy Refrigeration, A Division of Defy Appliances (Pty) Ltd and Others (D834/2009) [2015] ZALCD 35 (10 June 2015)

The court held that the applicant could not succeed on a ground for review that was not raised in the founding or supplementary papers. The refusal by the third respondent to allow an enquiry into the fairness of the prior warning did not constitute a reviewable irregularity, especially as the applicant's representative had expressly stated during arbitration that the warning itself was not being challenged. The third respondent had considered all relevant factors in determining the appropriateness of the dismissal, including the prior warning, length of service, and circumstances of the misconduct. The application was therefore dismissed.

Citation
[2015] ZALCD 35
Parties
Applicant: NUMSA obo Z Jada & 1 Other; Respondent: Defy Refrigeration A Division of Defy Appliances (Pty) Ltd; Respondent: Metal and Engineering Industries Bargaining Council; Respondent: Nonhlanhla Dubazane N.O.
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
10 June 2015
Case Number
D834/2009
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs.
Judges
Gush
Legal Topics
Unfair Dismissal, Procedural Fairness, Consistency in Discipline, Review of Arbitration Award
Labour Law Unfair Dismissal Procedural Fairness Consistency in Discipline Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

NUMSA obo Z Jada & 1 Other

Applicant

Defy Refrigeration A Division of Defy Appliances (Pty) Ltd

Respondent

Metal and Engineering Industries Bargaining Council

Respondent

Nonhlanhla Dubazane N.O.

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the third respondent's arbitration award was reviewable for refusing to allow an enquiry into the fairness of a prior final written warning.
  2. 2 Whether the dismissal of the employees was both substantively and procedurally unfair.
  3. 3 Whether the applicant could introduce a new ground for review not raised in the founding or supplementary papers.

Ratio Decidendi

The court held that the applicant could not succeed on a ground for review that was not raised in the founding or supplementary papers. The refusal by the third respondent to allow an enquiry into the fairness of the prior warning did not constitute a reviewable irregularity, especially as the applicant's representative had expressly stated during arbitration that the warning itself was not being challenged. The third respondent had considered all relevant factors in determining the appropriateness of the dismissal, including the prior warning, length of service, and circumstances of the misconduct. The application was therefore dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The applicant’s application is dismissed with costs.